C. Current drug policy

Drug related legislation

The law that has most relevance to drug policy and legal response to drug use is the Narcotic Drugs (Control) Act, 2033 (1976). This law is limited in its coverage of drug-related matters, simple in its form and content, and could benefit from updating. It was last amended in 1993 (2050).

The Narcotic Drugs (Control) Act, 2033 (1976) states that a person convicted of transacting more than one hundred grams of opium poppy of coca bush shall be punished with imprisonment for a term of fifteen years to life imprisonment and with a fine of between five hundred thousand rupees and twenty five hundred thousand rupees (US 7,500 to US$ 37,000). One key informant in government stated that the maximum penalty for drug trafficking in Nepal is 33 years imprisonment, greater than “life imprisonment” which is 20 years. This statement is inconsistent with the provisions listed in the Narcotic Drugs (Control) Act, 2033 (1976). There are no provisions for the death penalty in Nepal. Section 11C (e) of the Narcotic Drugs Control Act states that anyone who consumes opium, coca or any other narcotic drug made there from shall be punished with an imprisonment for a term of up to one year or with a fine up to ten thousand rupees.

The laws on drug use and treatment in Nepal are seen by some clinicians as being quite vague at present. One key informant advised that the laws

“....allow a doctor to treat drug dependent persons with substitution treatment for many months without necessarily seeing the patient. The doctor can merely advise the patient over the telephone to continue taking the medication and that is sufficient for the purposes of professional accountability”.

Reference to the Narcotic Drugs (Control) Act, 2033 (1976) reveals that there are provisions for a bond that replaces imprisonment with an undertaking to enter and remain in treatment for three months and for the treating agency to submit fortnightly reports on the individuals concerned.

The Narcotic Drugs (Control) Act, 2033 (1976) also contains provisions for withholding or remitting punishment for minor and first offences. Specifically, if a person is found to have purchased or possessed cannabis or medicinal opium, without commercial motive and in a small quantity, or has consumed only a small dose and if he has committed such an offence for the first time, the Narcotics Drug Control Officer may, after keeping a record of such person, make him sign a bond undertaking not to commit such offence again and release him after recording the reason for withholding the prosecution. Even when prosecution has already commenced, the court may, if it deems the offence to be of a minor nature and if the person has committed the offence for the first time, fulfil the above processes and release him without applying any punishment.

It is not clear that the criminal justice system has played any substantive role in HIV prevention in Nepal. Rather, some aspects of the criminal justice system would appear to be adding to HIV vulnerability among people who use drugs and their sexual partners. A number of key informants observed that police officers may sometimes use the illegal status of specific drug to their own financial advantage, harassing people and coercing bribes or personal favours in lieu of their arrest.

HIV risk in prisons

Drug dependent persons are not generally provided with any medication for symptom relief or clinical safety when imprisoned. They withdraw “cold turkey”. They may be discriminated against while in prison and generally receive no specialized treatment. No aftercare is available following their release.

Prisoners are not routinely tested for HIV. The Ministry of Home Affairs concedes that illicit drug use does occur in Nepalese prisons and where detected, it is met with increased punishment. When asked about the risk of HIV transmission through unsafe sex in prisons, it was suggested that: “This is not a problem because men are separated from women in prisons”.

Senior officers of the Ministry suggested that men having sex with men does not occur in Nepalese prisons and that indeed, it is uncommon in Nepalese culture. The questions of drug use and unsafe sex in prisons are matters that, as in this case, government officials may not feel comfortable in discussing. However, advice received from a non-governmental organization working within three prisons in Nepal confirmed that both risk behaviours do occur.

It is important to note that condoms are now available in these three prisons following extensive discussions between staff of these non-governmental organizations and prison officials. 1,500-2,000 condoms are now reportedly distributed each month. However, the great majority of prisons do not allow condoms and the risk of HIV transmission appears real and substantial. The absence of drug injecting that is thought to exist in these three prisons may not exist in others in Nepal, but this is of course conjectural.

International frameworks for drug control

The Narcotic Drugs (Control) Act was passed in 1976 and amended in 1981 and 1987 and Nepal became a party to the 1961 Single Convention and the 1972 Protocol amending that Convention. In July 1991 it became a party also to the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. A Drug Control Unit was established within the Ministry of Home and a nation-wide network for drug abuse control was created with the Chief District Officers designated as drug control officers. The Police Department, which carries the main burden of narcotic drug enforcement in the country and makes virtually all the seizures and drug-related arrests, established a drug section within the Crime Investigation Department that currently supervises drug squads and drug seizures and enquiries in seventy-five district police offices. The Department of Customs is also nominally responsible for drug enforcement activities at customs posts along the borders and the airports, however with few seizures to its credit (HMG/N, 1992).